The Supreme Court, continuing its practice of acting on one case at a time as death-row inmates seek to block execution by lethal injection, ruled on Monday that it did not have the authority to review a challenge in a Mississippi case that came up from state courts. But, almost simultaneously, the Court was asked to postpone the same execution in a case reaching it from lower federal courts.

The flurry of activity involving Mississippi death row inmate Earl Wesley Berry left in doubt whether his execution with the use of a three-chemical formula would occur as now scheduled, at 6 p.m. Tuesday.   The execution protocol is apparently the same as one that the Justices have indicated they will review this Term in the Kentucky case of Baze v. Rees (07-5439), involving a claim that the method as now employed in 36 states is an unconstitutional form of “cruel and unusual punishment” under the Eighth Amendment.

There was no recorded dissent in the Supreme Court as the Justices denied a stay of execution (application 07A334) and denied on jurisdictional grounds a petition (07-7275) to review a Mississippi Supreme Court ruling. Because that state court decision was based upon “an adequate and independent state ground,” the Justices were deprived of authority to hear it, the order said.  The order can be found here.

In a decision Oct. 11 refusing to postpone Berry’s execution, the state Supreme Court said his challenge to the protocol was “procedurally barred” under state law. It said the fact that the Supreme Court was pondering the constitutionality of lethal injection was not a change in the law that cleared the way for Berry to pursue his new challenge. The state court also noted tht it had upheld the three-drug procedure in 2005. While defense lawyers had not raised the constitutional issue at Berry’s trial, it probably would not have changed its mind had the lawyer raised it, the state court declared.

Berry’s newest challenge at the Supreme Court involves a Fifth Circuit Court decision last Friday, refusing to delay the execution on federal constitutional grounds.  It noted that Circuit precedent, dating from 2004 and bearing directly on the lethal injection method, made clear that “death-sentenced inmates may not wait until execution is imminent before filing an action to enjoin a state’s method of carrying it out.”

On Monday, Berry’s attorneys filed a stay application (07A367) in the Supreme Court, pending the Justices’ action on a newly filed petition for certiorari (07-7348) to review the Fifth Circuit decision.  The stay request argued that the Fifth Circuit was wrong in relying solely on the issue of whether the challenge was filed in time.  If the Justices agreed to review that ruling, the petition said, they will be asked to “provide guidance to the lower courts as to when a federal court may dismiss a ‘last minute’ lawsuit,” especially since there is now a split among federal appeals courts on how to treat lawsuits raising issues that are currently before the Justices in the Baze v. Rees case.

Because the Court is reviewing the Baze case, his lawyers contended, “there is a reasonable probability” that review also will be granted in his case, too. “This Court has recently granted and affirmed stays in the wake of its grant of certiorari in Baze,” they contended.

The District Court and the Fifth Circuit, his application notes, refused to address the merits of his challenge solely because they found his lawyers had been “dilatory” in pursuing it.  Those courts, it added, “appear to apply an absolute bar to constitutional challenges to methods of execution raised when execution is ‘imminent.'”  At most, his lawyers asserted, undue delay in filing a challenge is only one factor to be considered in deciding whether to delay a scheduled execution.

The stay application can be found here.

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